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  4. Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting - [2022] QCAT 40

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Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting[2022] QCAT 40

Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting[2022] QCAT 40

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting [2022] QCAT 40

PARTIES:

STRIKE DEVELOPMENT PROJECTS PTY LTD

(applicant)

v

MICHAEL PETER FITZPATRICK T/AS MF PROFESSIONAL PAINTING

(respondent)

APPLICATION NO/S:

BDL077-21

MATTER TYPE:

Building matters

DELIVERED ON:

13 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The proceeding is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – Where the applicant engaged the respondent to conduct painting works – where the works were not completed – where the applicant and respondent are located in Queensland, but the works were carried out in New South Wales – whether the tribunal has jurisdiction to decide the dispute – consideration of the meaning of ‘tribunal work’ under s 75 of the Queensland Building and Construction Commission Act 1991 (Qld).

Domestic Building Contracts Act 2000 (Qld).

Queensland Building and Construction Commission Act 1991 (Qld) s 77, s 75(2), s 76(1)(n), sch 2.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47.

Beygold Pty Ltd v Wendgold Pty Ltd, Gabriel and Gabriel [2006] QCCTB 200.

Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134.

Fraser Property Developments Pty Ltd v Sommerfeld & Ors [2004] QSC 363.

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    Strike Development Projects Pty Ltd (Strike) and Mr Fitzpatrick entered into a period trade contract for Mr Fitzpatrick to undertake painting work. Strike says that, in respect of three jobs, Mr Fitzpatrick invoiced Strike for the full amount of the works however carried out only 10% of the works. 
  2. [2]
    Strike commenced proceedings for a minor civil dispute in the tribunal claiming the amount paid by it for works Mr Fitzpatrick did not perform. An adjudicator ordered that the proceedings be transferred to the building list.
  3. [3]
    The works, the subject of the dispute, were carried out in New South Wales. The tribunal made directions for the parties to file submissions addressing the preliminary issue of the jurisdiction of the tribunal to decide the dispute.
  4. [4]
    The preliminary issue falls for determination.

The jurisdiction of the tribunal to decide building disputes

  1. [5]
    The jurisdiction of the tribunal to decide building disputes is conferred by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[1]
  2. [6]
    A building dispute may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.
  3. [7]
    A domestic building dispute includes a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.[2] ‘Reviewable domestic work’ means domestic building work.[3]
  4. [8]
    Part 7 of the QBCC Act has the heading ‘Jurisdiction of tribunal’. Section 75 sets out what is ‘tribunal work’. Section 76 sets out what is not ‘tribunal work’.
  5. [9]
    ‘Reviewable domestic work’ is ‘tribunal work’.[4] However, by s 76(1)(n) of the QBCC Act, ‘tribunal work’ carried out outside Queensland is not ‘tribunal work’.[5]

What do the parties say?

  1. [10]
    Strike says that the work, the subject of the period trade contract, is domestic building work. Strike says that the present dispute is one between two building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.
  2. [11]
    Strike says that it is not required to rely upon the definition of ‘tribunal work’ in order to invoke the jurisdiction of the tribunal to decide the dispute. It says that while the definition of ‘tribunal work’ does not include work performed outside Queensland, there is no similar exclusion for any of the definitions relevant to this proceeding, the relevant definitions being in respect of ‘domestic building work’, ‘reviewable domestic work’, or ‘domestic building dispute’.
  3. [12]
    Strike says that s 76(1)(n) of the QBCC Act has no application in the present proceedings.
  4. [13]
    Strike also says that while the work may have been performed in New South Wales, both the applicant and the respondent are located in Queensland and the period trade contract was entered into in Queensland.
  5. [14]
    Mr Fitzpatrick has filed no submissions.

Consideration

  1. [15]
    The tribunal is a creature of statute and has only those powers conferred upon by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and any enabling Act.
  2. [16]
    It may be accepted for present purposes that the dispute between the parties relates to domestic building work or a contract for the performance of domestic building work.
  3. [17]
    The tribunal has jurisdiction to decide a building dispute. As I have observed, a building dispute includes a domestic building dispute. A domestic building dispute includes a dispute between 2 or more building contractors relating to the performance of reviewable domestic work. Reviewable domestic work means domestic building work.
  4. [18]
    The tribunal has also jurisdiction to decide a commercial building dispute.[6] A commercial building dispute is a dispute relating to the performance of reviewable commercial work or a dispute about a contract for the performance of reviewable commercial work. Reviewable commercial work means tribunal work other than reviewable domestic work.
  5. [19]
    The meaning of tribunal work is found in s 75 of the QBCC Act. Section 75(2) provides that tribunal work includes reviewable domestic work.  By s 76(1)(n) of the QBCC Act, tribunal work carried out outside Queensland is not tribunal work. It should be noted that there is an obvious deficiency in the drafting of the various provisions contained within Part 7 of the QBCC Act. Nowhere is it stated that the tribunal has jurisdiction only in respect of ‘tribunal work’. The unfortunate result of this drafting imprecision is that the Act does not clearly state whether the jurisdiction of the tribunal to decide a building dispute conferred by s 77(1) is confined to tribunal work as set out in s 75 and s 76.
  6. [20]
    The apparent lacuna in the relevant sections of the Act conferring jurisdiction on the tribunal in respect of building disputes was considered by the Court of Appeal in Fraser Property Developments P/L v Sommerfeld & Ors.[7]
  7. [21]
    Fraser Property Developments concerned whether a dispute about council approval of building plans was a building dispute. The judge at first instance held that the nature of the disputes over which the former Commercial and Consumer Tribunal (CCT) had jurisdiction was not defined by reference to the definition of ‘Tribunal work’ in s 75 of the Queensland Building Services Authority Act 1991 (Qld) (now the QBCC Act) and that the CCT was not limited to hearing tribunal matters as set out in s 75 of the QBSA Act.[8] The trial judge stated:

[16] Sub-section 76(1) of the QBSAA then defines what is not “tribunal work” and in (m) lists “tribunal work carried out by a local government for a local government …” as work which is not “tribunal work”.

[17] I am satisfied that the council approves plans for its own purpose of regulating building standards within its boundaries. If the jurisdiction of the tribunal was limited to “tribunal work” as defined in s. 75 of the QBSAA as limited by s. 76, the tribunal would not have jurisdiction to determine the claim against the council. I am of the view that the tribunal is not limited to hearing tribunal matters as set out in s. 75 of the QBSAA. As a consequence, one does not need to have recourse to the exclusions set out in s. 76. Sub-section 77(1) of the QBSAA is unambiguous. It confers on the tribunal an express jurisdiction to hear building disputes as defined in schedule 2. There is thus no need to refer back to the definition of “tribunal work” except in the very limited circumstance I have indicated above.

[18] Paragraph 8(3)(a) of the DBCA[9] states that domestic building work includes work associated with the erection, construction, removal or resiting of a detached dwelling. Such work is referred to as “associated work”.

[19] For the tribunal to have jurisdiction to hear the owners’ claim against the council that claim must fall with the scope of “associated work.”

  1. [22]
    As is evident from the above passage, the trial judge found that the jurisdiction of the tribunal to decide building disputes was independent of the meaning of tribunal work found in s 75. The consequence of this was that the work undertaken by the council was ‘associated work’ as defined under the Domestic Building Contracts Act 2000 (Qld) (DBCA), with the result that the dispute was a building dispute in relation to which the CCT had jurisdiction to decide.
  2. [23]
    The submissions by Strike in this proceeding rely upon the same reasoning adopted by the trial judge in Fraser Property Developments. That approach must however be rejected.
  3. [24]
    In Fraser Property Developments P/L v Sommerfeld & Ors the Court of Appeal disagreed with the trial judge’s construction of the provisions of the QBSA Act. McPherson JA considered the meaning of s 75, s 76 and s 77(1) and stated:

[22] For the reasons given, however, I remain persuaded that his Honour was not correct in holding that s 77(1) confers on the tribunal a jurisdiction that is independent of the meanings ascribed to “tribunal work” in ss 75 and 76 of the QBSA Act. Those meanings are said to be “central terms” in the heading to Division 1 of Part 7 JURISDICTION OF TRIBUNAL. Section 77(1) says no more than that a person involved in a building dispute may apply to the tribunal to decide the dispute. Each of the items listed in the definition of “domestic building dispute” in schedule 2 of QBSA Act imports the qualification “relating to” or “related to” the performance of “reviewable domestic work”, which is then defined to mean domestic building work under the DBC Act.

[23] In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:

“nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”

See Peacock v Bell (1667) 1 Wms Saund 69, 74; 85 ER 81, 87-88, applied in Mayor of London v Cox (1867) LR 2 HL 239, 259-260; Cameron v Cole  (1944) 68 CLR 571, 585; and DMW v CGW (1982) 151 CLR 491, 509. The Supreme Court is the superior court of general jurisdiction for this State, and, if its authority to hear and determine the plaintiff’s claim against the third defendant is to be taken away and bestowed on another body or tribunal, it must be accomplished by statutory provisions that are very much clearer in their meaning and effect than those contained in either s 75(1) or 77(1) of the Queensland Building Services Authority Act 1991. The presumption against depriving this Court of jurisdiction is one that applies with peculiar force in the present case.

  1. [25]
    Williams JA held:

[28] Section 77 of the Queensland Building Services Authority Act 1991 (Qld) ("the QBSA Act") provides that a "person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute." One would have thought that it would have been easy for the legislature to have defined what was a "building dispute" for purposes of that provision conferring jurisdiction on the Tribunal. But, as the reasons of McPherson JA indicate, it is an almost impossible task to arrive at a clear definition of what is a "building dispute" for purposes of that provision; in order to arrive at an answer one has also to go to another statute, the Domestic Building Contracts Act 2000 ("the DBC Act").

[29] What complicates the matter even further is that s 75 of the QBSA Act defines "tribunal work" which is asserted to be one of the "central terms" of the legislation; then s 76 defines what is not "tribunal work". What is puzzling is that the statute does not expressly say that the Tribunal has jurisdiction with respect to "tribunal work". But given the fact that s 75 and s 76 are found in Pt 7 which is headed "Jurisdiction of Tribunal", the only conclusion reasonably open is that those two sections play a significant part in determining the jurisdiction of the Tribunal. Relevantly, s 75(2) declares "that reviewable domestic work is tribunal work."

  1. [26]
    From the foregoing passages may be derived the following: the jurisdiction of the tribunal is as set out in s 75 and s 76 of the QBCC Act; s 77(1) does not invest the tribunal with a jurisdiction beyond ‘tribunal work’ as defined in s 75 and s 76; by s 75(2) reviewable domestic work is tribunal work; by s 76(1)(n) tribunal work does not include tribunal work carried out outside Queensland.
  2. [27]
    Subject to the operation of s 76(1)(n), the relevant building work undertaken by Mr Fitzpatrick was ‘tribunal work’. The building work was however carried out outside Queensland. By operation of s 76(1)(n), the building work undertaken by Mr Fitzpatrick was therefore not ‘tribunal work’. As the jurisdiction of the tribunal to decide a building dispute is confined to a dispute about ‘tribunal work’ it follows that the tribunal does not have jurisdiction in respect of the present dispute.[10]
  3. [28]
    Where the tribunal lacks jurisdiction to decide a matter the proceeding may be said to be misconceived or lacking in substance. In such circumstances, the tribunal may dismiss the proceeding.[11]
  4. [29]
    The appropriate order is that the proceeding is dismissed.

Footnotes

[1]  QBCC Act, s 77.

[2]  Ibid, sch 2.

[3]  Ibid.

[4]  Ibid, s 75(2).

[5]  Ibid, s 76(1)(n).

[6]  QBCC Act, s 77(1), sch 2.

[7]  [2005] QCA 134.

[8] Fraser Property Developments Pty Ltd v Sommerfeld & Ors [2004] QSC 363.

[9]  A reference to the Domestic Building Contracts Act 2000 (Qld), now incorporated into schedule 1B of the QBCC Act.

[10]  See also Beygold Pty Ltd v Wendgold Pty Ltd, Gabriel and Gabriel [2006] QCCTB 200 (18 October 2006).

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

Close

Editorial Notes

  • Published Case Name:

    Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting

  • Shortened Case Name:

    Strike Development Projects Pty Ltd v Michael Peter Fitzpatrick t/as MF Professional Painting

  • MNC:

    [2022] QCAT 40

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    13 Jan 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beygold Pty Ltd v Wendgold Pty Ltd, Gabriel and Gabriel [2006] QCCTB 200
2 citations
Jump To
Cite 1 - [2006] QCCTB 200
Cite 2 - [2006] QCCTB 200
Cameron v Cole (1944) 68 CLR 571
1 citation
Jump To
Cite 1 - (1944) 68 CLR 571
DMW v CGW (1982) 151 CLR 491
1 citation
Jump To
Cite 1 - (1982) 151 CLR 491
Fraser Property Developments Pty Ltd v Sommerfeld [2004] QSC 363
2 citations
Jump To
Cite 1 - [2004] QSC 363
Cite 2 - [2004] QSC 363
Fraser Property Developments Pty Ltd v Sommerfeld[2005] 2 Qd R 394; [2005] QCA 134
2 citations
Jump To
Cite 1 - [2005] QCA 134
Cite 2 - [2005] QCA 134
Mayor of London v Cox (1867) L.R. 2 H.L. 239
1 citation
Jump To
Cite 1 - (1867) L.R. 2 H.L. 239
Peacock v Bell (1667) 1 Wms Saund 69
1 citation
Jump To
Cite 1 - (1667) 1 Wms Saund 69
Peacock v Bell (1667) 85 ER 81
1 citation
Jump To
Cite 1 - (1667) 85 ER 81

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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